Wednesday Morning Thoughts – Justice Operating Behind The Scenes

IMG_2907We continue today with the testimony of James Marra the Department of Justice (DOJ) employee from the Office of Inspector General (OIG) who has been qualified to put in FBI informants records as a keeper of the records (KOR) as they related to Whitey Bulger. I’ve noted there’s something that seems not on the level with the way this is being done. Usually the KOR is a person who works within the department where the records are kept and knows about the daily operations of the record keeping there.  Marra never worked as an FBI agent nor has he worked in the Boston office. So when any specific questions are asked about how something was done at a certain time he can only say the rules and regulations were such and such. But if there is anything we know about the FBI, especially after Judge Wolf’s hearing, is that they don’t follow the rules and regulations. Marra’s being used so that anything that might be exposed by someone working there will not happen,

There’s also the unusual background of Marra’s involvement in this matter. The OIG is supposed to keep an eye on the agencies and its employees to ensure that they are performing their duties well and in compliance with the laws. Sometime in or after 2004 Marra was  assigned by the OIG to help in the Florida prosecution of John Connolly, the FBI agent now serving 40 years in Florida for second degree murder.

Connolly had retired from the FBI in 1990, had been indicted and convicted in federal court in Boston  in 2002, and was well into his second or third year in prison when Marra was assigned to do a historical review of Connolly’s actions back to 1976 to 1982 as they related to five murders. It is the only time Marra knew of when the OIG assigned one of its agents to help a prosecutor prepare a case against a person long gone from an agency. Certainly it was the only time in US history where an agent in an OIG office helped to prepare a state case, Marra was assigned to help with the Florida murder trial.  He said he worked with both AUSA Fred Wyshak and the state prosecutor in Florida. Wyshak had the major role in he trial of the Florida case.

Marra was assigned to this project, he testified, by his boss in New York. He said he briefed the Inspector General and Assistant Inspector General in Washington, DC about his actions. This leads me to conclude that the highest levels of the Justice Department (Margolis?) were involved in assisting the prosecution of John Connolly in Florida for an offense which he was acquitted of by a Boston federal jury.

In 2002 the Boston jury found Connolly was not guilty of leaking information to Whitey and his cohorts that resulted in the death of John Callahan. For me this implicates a double jeopardy argument that Connolly was actually tried twice by the federal government for the same offense the second time under the guise of a state prosecution.. He was charged with participating in the murder of Callahan in Florida by leaking information,

When you see it was being directed and prepared at the highest levels of the Justice Department which is something we can infer from Marra testimony you have to think the Justice Department playing fast and loose with the US Constitution. What type of justice are we getting from a department concerned with justice when it willfully skirts a basic bedrock of American Justice.

This also explains why FBI Agent Connolly was allowed to be tried in Florida. The Justice Department usually will intervene when a federal agent is charged by a state for a crime committed while he was performing his federal duties. We have the Supremacy Clause of the Constitution that protects these officers from state prosecutions.  Connolly’s job as an FBI agent was to protect his top echelon informants so they could stay on the street and continue to feed the FBI information. Here, assuming he told them that Callahan was going to be investigated by the FBI, was he doing that pursuant to the duties expected of him? These are the duties the FBI tries to hide but as we heard an FBI tell a top-level informant, “my job is to keep you safe.”  The issue was never raised because the Justice Department refused to act as it normally would have done. But then again how could it act when it was doing the prosecution.

Marra’s testimony brought out some uncomfortable facts, not the least is the slap at the FBI that it is not trusted to have one of its own people as is traditionally done to interpret its own records.  We’ve seen how Marra, someone outside the FBI, can escape answering questions professing ignorance. None of it has the right feel to it.

Then again, aside from the above, the issue of whether Whitey was an informant, which Marra’s testimony is designed to prove, is not an issue in the trial. It has no bearing on his guilt or innocence. But there is a reason for it being thrown in and that’s to somehow buttress the upcoming testimony of Flemmi and Weeks who the prosecutor knows will need all the support they can get.

8 thoughts on “Wednesday Morning Thoughts – Justice Operating Behind The Scenes

  1. C and B have Ring and other retired FBI agents on their witness list. Could they be used to undercut and challenge the Marra testimony? Could C and B ask the FBI what is the oath they take? To defend the Constitution? Is their a Double Jeopardy provision in that document? Would it be a violation to try someone twice? Then put in evidence that Wyshak twice tried Connolly. Ask the jury who is breaking the law.

    1. N

      Clearly C&B have to show Ring and the others were on the take to prove their case. I think they are going to do it. Brennan has bored the hell out of me but I now see the defense plan more clearly since I’ve had some time to think of it. Their plan involves sinking Connolly so that he looks like the worst FBI agent who ever lives, probably excepting Morris. Don’t for one second think they’ll do anything for Connolly other than attempt to destroy him. It’s Whitey’s only chance.

  2. Dear Matt,

    Thank you for being our eyes and ears on the ground day in and day out. Without these play-by-plays, people like me would be left to sift through filtered commentary by the mainstream media. Your insights and expertise pertaining to John Connolly also must be praised. I cannot even imagine how it must be to see these connections being made from then to now, and surely there will be a sequel to your earlier book, _Don’t Embarrass the Family_, when all of this is said and done.

    Please allow me to supplement your observation here with one comment regarding the relationship between OIG offices and States. There are occasions where there are partnerships between OIGs and local authorities. For example, the OIG of the Department of Health and Human Services (DHHS) works with State Medicaid Fraud Units and even partners with State and local authorities in what is known as the Health Care Fraud Prevention and Enforcement Action Team (HEAT). See DHHS OIG, Semiannual Report to Congress, Spring 2013, http://oig.hhs.gov/reports-and-publications/archives/semiannual/2013/SAR-S13-Final.pdf.

    However, exactly as you note, there is a big difference between working partnerships — even partnerships which may result in a criminal prosecution or civil suit — and working “under supervision” of either a state prosecutor or federal prosecutor. At DHHS OIG, there are occasions where OIG attorneys are awarded a Special AUSA status, where they may prosecute cases which they have investigated. This is to better ensure independence and objectivity. Thus, while OIGs may partner with States and local jurisdictions for some non-federal prosecutions, these typically apply in cases like abuse or fraud involving Medicaid funds which are a pool of both State and Federal monies.

    In the case of Connolly you relay here, I do not see how there would be federal jurisdiction in the matter, other than the fact that Connolly was a federal agent, as you keenly point out. In summary, there are cases where OIGs will partner with State and local authorities to investigate and conduct audits, and the outcome of those efforts may be used for both criminal and civil cases at the state level. But these are usually due to some jurisdictional basis and not a case of venue shopping, particularly after a target has already been acquainted at the federal level. It should never be, as you note here, a matter of “preparing” the case for a state prosecution by what appears to be working under supervision and with the goal being to prosecute, rather than functioning under the auspices of its OIG mission. That, I believe, is the point you wisely proffer here. As usual, it compels us all to think.

    I share in your surprise that the FBI may have played an active role in the Florida prosecution of John Connolly, after he had already been acquitted in the U.S. District Court of Massachusetts. Do you believe that this could be the basis for Connolly to file a meritorious appeal?

    Respectfully,
    Jay

    1. Jay:
      Thanks for your kind words. Another book is far from my mind right now — “she who must be obeyed” will have to be pacified first and that is going to take a long while but I’d like to tell the story some day about a lot of aspects of this case especially since I’m learning so much more through the comments from people like yourself.

      You’ve provided a lot of good information on the OIG statute and the way it is supposed to operate. That agents from OIG are being used in such an unusual way with approval of the very top of the DOJ sends me all the wrong signals. Marra seemed far too cute in some of his answers which were often worded exactly the same way as if he had memorized rote responses to spin out whenever given a chance. It was not the FBI who was active in Connolly’s Florida prosecution but other agents from other branches of the DOJ which indicated to me very high level interest in the matter.

      Connolly has pretty much exausted his appeals unless he somehow can get into federal court. He’s broke so he is paying nothing for whatever legal help he can get and the value of the help ou get when in a legal jam is usually commensurate with what you pay for it. I don’t know but I believe the double jeopardy and the Supremacy Clauses were never raised. If he had decent lawyers I believe they could prove the Florida prosecution was a federal prosecution disguized as a state prosecution.

      1. Matt

        I know we disagree about this but there is an ample record that Florida law enforcement was on top of the Callahan case without federal prodding. Miami-Dade detectives were present, at Florida cost, for Callahan’s Boston trial and Miami-Dade prosecutors were involved in and their consent was required in the Martorano and Flemmi deals. The elected state attorney of Miami-Dade County elected to go ahead with the Connolly prosecution. The State of Florida has the right to be represented by attorneys of their choice and legally added Wyshak’ to their team that included veteran Florida prosecutors.

        As you have often pointed out, Connolly had two trials. He was convicted by two juries. He is a convicted racketeer and a convicted murderer.

        When WB was arrested, Connolly apologists trumpeted that WB had told FBI agents that Connolly had never given him information. Now at trial, WB has made Connolly the main villain. Recipient of big money in exchange for secret FBI info.
        My position is that what WB says has no credibility. What he says has no relevance to the truth and so it doesn’t damn Connolly further nor does it exonerate him.

        I grew up in Boston and went to law school here and there is tendency to view Massachusetts as the epicenter of the legal world here. Like it or not, Massachusetts is a small pond in the larger viewpoint. California, Texas, New York, and yes Florida are big state systems handling big volume criminal caseloads at a level just as, if not more, sophisticated than what goes on in Massachusetts.

        Massachusetts lacks a state RICO statute and its 2 party consent recording statute critically limit enforcement.

        Florida has several law enforcement agencies larger and more respected in the law enforcement community than any in Massachusetts. MDPD is the 8th largest police agency in the US. The Miami-Dade SAO is larger than the Suffolk, Middlesex, and Norfolk DA ‘s combined.

        The point is, these are not southern country bumpkins you are dealing with. They are just as, if not more, sophisticated than MA law enforcement.

        Connolly’s Florida conviction was not a miscarriage of justice but instead an example of the system working correctly.

        I realize many on this site don’t like it but you need to realize you are no different than the hundreds of thousands of family members/ interested parties complaining about the conviction/ incarceration of all the run of the mill inmates across this nation.

        1. JHG.
          Florida kills people then says nothing as more and more people are freed because of DNA evidence.
          Yes you do have qualified attorneys. Same as here. Let’s be clear about something JHG. We up here are not all Ivy League educated smarter than you a-holes. The ones commenting onthis blog deal with the big firm dickheads every day and run circles around them. Soundds more like you have a problem with your status rather than ours.

          Back to why Fl sucks if your poor and arrested. Where was I? Oh yeah, we have the best best best free lawyers for thiose charged with miurder. If you are poor and charged with murder the Commonwealth (yes we are a commonwealth, by definition that makes us better than a little ole state that was on the wrong side in the civil war.

          where was I? Oh yeah we are not arrogant or condescending, we just have a better system than florida, that’s all. The record is cleared. Public defenders representing those charged with capital crimes in Floirida are overwhelmed. The system doesn’t give them proper resources and overloads them with cases. It’s not the lawyers fault it’s the stae’s fault.

          And you elect your judges. BAAHAHAHA on that one JHG. Really counsellor. How messed up is that. I’d much prefer our arrogant bastards up here who think they poop ice cream but for the most part try do the right thing without having to worry about the political influence of the lawyers in front of him or the decisions effect on his re-election.

          Really JHG. your state’s legal system blows. Nobody is criticizing the quality of your lawyers. Settle down little brother.

          1. and another thing JHG, we realize this case is no different than thousands of others incarcerated. Poor kids. Mostly minority. Easy to screw because nobody cares. You don’t have to be black or poor to know this. But it helps to have been around it. Grown up in a dense urban neighborhood like matt. Where you get empathy. Where you don’t need to be told by limousine liberals tha poor people get screwed and por black people get scfrewed time a thousand.

            But this case has becoem an internationally known circus. But one that lets a light shine on the system. Not too many opportunities for this. Thsi is what the defense attorneys representing those poor black kids getting shafted want to showcase. A corrupt system. It only helps them.

            Look at the bigger picture JHG. In between gator hunting and NASCAR races and grapefruit shucking and Jerry Springer watching give some thought as to the bigger picture of the Bulger case.
            Boston didn’t make Whitey the all-time record holder for being #1 Most Wanted for the longest ever. The Feds did and the country took it.

            You know what JHG, you need a good meal before you think about this. So i suggest you head on down to The Olive Garden or better yet fish is brain food and you’re gonna be doin some thinking. Make it Red Lobster.

            Florida, are you kiddin’ me? Their legal and judicial system is a mess because the people choose to make it that way.

        2. JHG:
          Sorry for the late response. I read this and set it aside since I wanted to give it some more thought because you made some excellent points. We don’t agree on some things which is good but I’ve always taken time to consider what you write and as you know I believe I have modified or corrected some of my ideas based upon what you have written.

          I believe given what you told me before about the amount of work the Florida courts have in front of them, especially when I wrote the article saying some other county in Florida should be looking at prosecuting Martorano for the hit his guys made there, they aren’t going around looking for work. I therefore think that there had to be a federal push to get them interested in this matter. I never questioned the right of the State of Florida to prosecute Connolly or that Florida did not put some work into it or that it had no authority to appoint Wyshak as a prosecutor, I’m just pointing out that no matter how much Florida wanted to be involved this was the same federal case with the same federal witnesses and investigators and same federal prosecutor as existed in Boston. If Florida did not have all the federal help and information it would not have had a case. I’m suggesting when the federals lose a case on the merits in federal court it is not right for that same team to go to a state court and retry the same case, which is what happened here. I think that does implicate the idea of double jeopardy.

          I’m not a Connolly apologist. I’ve said he was rightly convicted in Boston although the sentence was harsh. If Whitey Bulger’s defense team is to be believed, then Connolly was worse than even Wyshak imagines and he belongs in prison for the rest of his life. It is doing an effective job showing that Whitey was no an informant, much better than I thought they could do. That is without us having to decide to believe Whitey or not. As for the Florida conviction, I’ve said the legal issues at the lower court appeared substantial and I would have thought given the length of the sentence the appeals court would have written a sentence. You pointed out I don’t know the system there, which is correct, and you noted that was not unusual, which I accept.

          I agree with you about the tendency to view Massachusetts as an important place. I held that view once. A couple or more years after getting out of law school I flew out to visit a classmate from law school in Chicago. I guess I was going on a little too much about Boston and he asked me to come with him into his den. There he had on the wall a map of the US. He pointed to where we were and told me to look at the country from a Chicago perspective and I’d see how unimportant Boston far off in the right side of map and considerably smaller than the many cities closer to Chicago. It was a good lesson.

          I don’t suggest that the Florida system is run by a bunch of bumpkins. I do suggest that in the Connolly case there was a real statute of limitation/ineffective assistance of counsel issue and a subtantial murder with a gun issue. These have not been resolved in a manner to my liking. I don’t think justice is done by silence in light of what amounts to a life sentence. I also suggests that Connolly has (or had) a good double jeopardy argument and a good Supremacy Clause arguement that was not raised on his behalf – the latter should have been raised by the Department of Justice but we’ve seen that the prosecution of Connolly was directed from the highest levels.

          Disagree we must but your view is always welcome.

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